F 

sol 
-B7^ 



STATEHOOD 



FOR 



NEW MEXICO. 



ARGUMENTS ON BEHALF 

OF 

New Mexico's Admission into the 

Union and in Defense of tlie 

Territory's Inherent Right 

to the Waters of Her 

Streams. 



The Committee on Territories, 

House of Representatives. 



NATHAN E. BOYD, M. D. 




ass_ 



[)()( 






PRESHXTKI) liV 



1 



NEW MEXICO AND STATEHOOD. 



Admission Into the Union Essential to 
Territory's Material Progress* 



ANALYSIS OF CULBERSON = STEPHENS BILL. 



PROPOSED TREATY WITH THE UNITED STATES 
OF MEXICO. 



Abstracts from the Decisions of the Supreme Court of New Mexico in 

the Elephant Butte Dam Case ; with Citations from the 

Laws of the United States Relating to the 

Use of Water for Irrigation. 






^'' 






NATHAN E. BOYD, M. D. Kj^^J^' 



WASHINGTON, D. C. 

JUDD & DETWEILER, PRINTERS. 

1902 . 



"IN THE ARID REGION IT IS WATER- 
NOT LAND— WHICH MEASURES PRODUC- 
TION. . . . 

" The reclamation and settlement of the arid lands 
will enrich every portion of our country, just as 
the settlement of the Ohio and Mississippi valleys 
brought prosperity to the Atlantic States. The in- 
creased demand for manufactured articles will stimu- 
late industrial production, while wider home markets 
and the trade of Asia will consume the larger food 
supplies and effectually prevent western competition 
with eastern agriculture. Indeed, the products of irri- 
gation will be consumed chiefly in nphuilding local centers 
of mining and other industries, luhich would otherwise 
not come into existence at all. Our people as a whole 
will profit, for successful home-making is but another 
name for the upbuilding of the nation." — President 
Roosevelt's First Annual Message to Congress, Decem- 
ber 3, 1901. 



P. 

Csnirressionaf 
fommittees-. 






NEW MEXICO AiND STATEHOOD. 



EL PASO INTERNATIONAL DAM PROJECT A GRAVE 
MENACE TO NEW MEXICO'S FUTURE. 



VAST INTERESTS WILL BE DESTROYED IF THE USE 

OF THE WATERS OF THE RIO GRANDE FOR 

IRRIGATION IN NEW MEXICO 

BE INHIBITED. 



Dr. Nathan Boyd's Address, ox Behalf of Statehood 
FOR New Mexico, Before the Committee on Terri- 
tories OF THE House of Represiontatives. 



To the Committee on Territories, 

House of Representatives, Washington, D. C. 

Gentlemen: In accordance with the request of your Chairman 
I herewith submit for your consideratiou a formal statement em- 
bodying the substance of, and in some respects supplementing, my 
remarks when I had the honor of addressing you at yesterday's 
meeting on the subject of Statehood for New Mexico. 

Tlie Hon. B. S. Rodey, M. C, and the several members of the 
New Mexican Statehood Delegation, have described so fully New 
Mexico's many and varied sources of wealth that it is unnecessary 
for me to enlarge upon the fact tiiat the territory has been long en- 
titled to admission into the Union; that she now holds first place 
in the production of wool, and is a good second in tlie raising of 
cattle ; that her mineral and timber wealth are vast in extent and 
are being developed rapidly; that we have a population of over 
300,000 law-abiding industrious people, more than 90 per cent. 

(3) 



American born; that at tlie last general election more than 50,000 
voters were registered ; that in proportion to population we have a 
greater railway mileage, and support within our borders more 
banks, national and territorial, showing a larger ratio of deposits to 
capital stock, than any other state or territory ; that we have prop- 
erty to the value of over $300,000,000 taxable for the support of a 
state government; that we have more money per capita invested in 
public buildings and in public and other educational institutions 
than any other state or territory west of the Mississippi ; and that 
we annually expend more per capita for education than any other 
state or territory in the Union. All this, and the fact that for more 
than fift}'' years our people have been handicapped by a territorial 
form of government when fully entitled to Statehood, have been 
presented in detail for your consideration. 

Therefore, I have mainl}' confined my arguments to the impor- 
tance of Statehood in relation to New Mexico's agricultural interest; 
for no matter how great her other sources of material prosperity 
may be, the cultivation of her irrigable lands must forever remain 
her greatest and most certain source of wealth — provided always her 
people be not deprived of their right to utilize for irrigation purposes 
the flood tvaters of the Rio Grande and its tributaries. 

The h3^drographic condition of New Mexico is such that the 
waters of the Rio Grande and its tributaries constitute her most 
valuable asset. Statehood will safeguard her right to impound the 
flood waters of her streams, and by ensuring protection for her 
farmers, contribute to the development of her other industries. 

Irrigation Conducive to Sociologic Betterment. 

History has shown that the highest forms of civilization the world 
has ever known were the outcome of physical conditions that ren- 
dered irrigation imperative. Where irrigation is practised, small 
holdings and intense cultivation obtain ; a condition constituting a 
happy combination of town and country life, and favorable to the 
development of the noblest social institutions. In the Egyptian 
Valley of the Nile, there ai'e only about 5,000,000 acres of land 
under cultivation — every acre of it irrigated ; and, as a result of 
irrigation, Egypt has been a landmark in the world's history for 
thousands of years. In the Rio Grande Valley in New Mexico, as 
in the Valley of the Nile in Egypt, the irrigable lands have a great 
potential value. The highest priced and most productive farms on 



this continent are in districts where irrigation is practised ; and the 
largest yield known of nearly every staple crop has been obtained 
in the Rio Grande Valley by irrigating with the fertilizing water of 
the Rio Grande — the "American Nile." 

The United States annually produces more precious minerals than 
any otlier country in the world ; but the annual value of the wheat 
crop of Minnesota alone largely exceeds in value the annual output 
of all the gold and silver mines in the United States. Colorado 
leads all the states of the Union in the production of precious 
metals; but there are several hundred thousand acres under irriga- 
tion in Colorado, and the value of the products of her farms is 
nearly double that of her mines. 

New Mexico also is rich in mineral wealth. Valuable and pro- 
ductive mines have been long worked in the territory ; and having 
regard to the geologic formation, it is safe to assume that Nature's 
distribution of precious minerals extends with equal prodigality 
southward through New Mexico. But, be the mining possibilities 
of New Mexico never so great, the fact remains that if her people 
are not deprived of their justly inherent right to impound and ap- 
propriate for irrigation purposes the flood waters of her streams, her 
farms inevitably must become her chief source of prosperity, and 
in the relatively near future add many millions of dollars annually 
to the agricultural wealth of the American Nation. 

Unhappily, we are in grave danger of being despoiled of our 
right to the waters of our catchment area ; and if we are wrong- 
fully deprived of the use of the flood waters of our streams, the 
farming interest of our people is doomed, and we must remain for 
all time dependent upon neighboring states for the bulk of our food 
supplies. Hence, gentlemen, the importance of Statehood ; for 
once admitted into the sisterhood of states, New Mexico's right to 
the waters of her catchment area will be as unassailable as is that 
of Colorado and the other arid states to the waters of their non- 
navigable streams. 

In New Mexico, the annual rainfall is so slig-ht that farming is 
practically impossible without irrigation ; but we have several mil- 
lion acres of rich alluvial land of unsurpassed fertility, irrigable 
from the Rio Grande and its tributaries. Medical experts have pro- 
nounced the climate of New Mexico to be unequalled on the Ameri- 
can continent, taking it the year round ; our fruits and cereals secured 
first prizes at the Chicago World's Fair and at the Paris Exposition ; 
our farms and orchards are from 1200 to 1500 miles nearer to the 



6 

great eastern markets than are those of California, and our fruiting 
season, especially in the southern part of the territory, is from four 
to six weeks earlier. 

I mention these facts, gentlemen, merely to emphasize the great 
importance of the vast interest which Statehood for the territory 
will safeguard. Our people consider Statehood of vital importance 
to their welfare; for without Statehood, our territorial water rights 
will remain in jeopardy, and we shall not be able to command capi- 
tal for the development of our irrigable lands. 

"Elephant Butte Dam" a Public Undertaking of Immknse 
Importance to New Mexico. 

For more than a quarter of a century, our people looked to Con- 
gress for financial assistance in storing the flood waters of the Rio 
Grande ; and whilst we have not altogether abandoned hope of some 
day receiving some form of national aid for the development of our 
arid lands, with an energ}'- characteristic of the West, we have demon- 
strated that, with or without Federal assistance, we are quite capable 
of financing and carrying out a great irrigation undertaking, so long 
as our right to appropriate the flood waters of our streams is not 
threatened by Congress. 

The normal flow of the Rio Grande has been used, more or less, 
for irrigation in New Mexico since the Spaniards first founded col- 
onies in that part of " New Spain " over 300 years ago ; but the sys- 
tem of irrigation practised is but a primitive one at best, and is 
carried on chiefly by means of '' community ditches." No attempt 
was made to impound the flood waters of the Rio Grande by build- 
ing great storage dams until 1893, when, despairing of Federal aid, 
a public company was incorporated under the laws of the territory 
for the purpose of building a storage dam at Elephant Butte, in 
Sierra County, and irrigating the valley and mesa lands below as 
far as Fort Quitman, Texas. All the requirements of the territorial 
and federal statutes were complied with in order to establish the 
reservoir rights essential to the undertaking; and the land-owners 
in the Valley, almost without exception, entered into formal con- 
tracts conveying to the Company part of their lands and transfer- 
ring to the Company their rights in the existing " community 
ditches," thus creating a valuable property basis for the necessary 
bond issue. 

Finding it impossible, in the then condition of the money market 



in this country, to raise, at anything but prohibitive rates, the large 
amount of capital required to carry out tlie proposed works, and 
being largely interested in the undertaking personally, I went 
abroad with a view to placing the Company's debenture bonds in 
Europe. Unfortunately, the mistrust of American industrial securi- 
ties, especially of irrigation securities, had become so universal that, 
notwithstanding large sums were expended in properly presenting 
the enterprise to capitalists, none would risk investment, although 
all admitted the obvious merit of the undertaking. 

In England, the directors of a public company, individually and 
collectively, are responsible to investors for good management; and 
finding that foreign investors would be more likely to entrust their 
money to an English board of directors, an English Company was 
formed (by my personal friends) to issue 8 per cent, preference 
shares and 5 per cent, debenture bonds, the former at par and the 
latter at a premium of 5 per cent., to be secured by a lease of the 
American Compan3''s undertaking. An exceptionally influential 
board, the members of which invested extensively in the enterprise, 
was secured, and largely upon the strength of the high rank and 
representative character of the members of the English Directorate, 
the necessary capital was underwritten and subscribed — subject to 
calls to be made from time to time, as needed. 

Col. W. J. Engledue, R. E., an eminent authority on irrigation 
engineering, who was for many years identified with the Imperial 
irrigation works in India, visited the Rio Grande Valley on behalf 
of the English investors, and carefully investigated the engineering- 
features of the undertaking and the rights and titles of the American 
Company. Work on the proposed dams and canals was begun ; a 
great colonization system was organized ; branch offices and agencies 
were established in Great Britain and on the Continent ; an im- 
mense amount of printed matter (in English and French) descriptive 
of the climatic and otiier advantages offered to settlers in the valley 
and of the resources of the territory was widely circulated ; and con- 
tracts for the sale of large blocks of land for fruit and vine culture 
were made, the (company undertaking to provide water within two 
years. 

Lands in the Rio Grande A^alley, irrigable from the Company's 
system of canals, previously worth but little more than a few dollars 
per acre, rapidly appreciated in value, large blocks being contracted 
for by subsidiary companies and sold to settlers at $100 an acre. 
Widespread. interest in the enterprise in particular, and in the re- 



sources of the territory in general, was aroused both in this country 
and in Europe ; and thousands of applications for land were being 
received at the London Office, when, without a word of warning, 
the then Attorney General (1897), at the instigation of the promoters 
of the " international dam " scheme, instituted proceedings with the 
avowed intention of invalidating tlie Company's rights and of con- 
fiscating the valuable works that were in course of construction. 

An Official Crime. 

For nearly ten years, certain parties in Old Mexico and Texas, 
interested in lands just below our southern boundary, have been 
scheming to have the Federal Government inhibit the use of the 
flood waters of the Rio Grande and its tributaries for irrigation 
above El Paso; and in the absence of any legitimate ground for 
legal proceedings against the Rio Grande Dam and Irrigation Com- 
pany, the action instigated as above was based upon the preposter- 
ous allegation that the Company's works would interfere with 
navigation in New Mexico. Such was the alleged ground for 
the attack upon our territorial water rights : but our enemies 
made no attempt to disguise tlie fact that the real object was 
toreserve the whole of the flood waters of the Rio Grande in 
New Mexico for the proposed '' international dam " to be built at 
El Paso, Texas. The absurd contention that the construction of 
storage dams in New Mexico would interfere with navigation above 
El Paso was soon abandoned, the suggestion that the Rio Grande is 
navigable in New Mexico being ridiculous in the extreme. But the 
action was continued on the gr(jund that our use of the waters of 
the Rio Grande for irrigation in New Mexico would seriously affect 
the " navigable capacity " of that Riversome 1200 miles or more be- 
low (measured by its sinuosities) ; where the alleged " navigation " is 
represented by one old stern-wheeler of about eighteen inches draft, 
which during a few months in the year, occasionally succeeds in 
" navigating " with much travail the sand bars and shallows between 
Brownsville and Rio Grande City, 170 miles above the mouth of 
the river. 

At first, our people treated the action as a huge joke, believing, of 
course, that so soon as the true characteristics of the Rio Grande 
were made known, through the medium of the court, to the heads 
of the departments here at Washington, the suit would be aban- 
doned ; for, manifestly, the impounding of the flood waters of the 



9 

Rio Grande, and their distribution over the hind by means of irri- 
gation ditches, would improve the normal flow of the river below. 

It is a well-established fact that the use of the flood waters of tor- 
rential streams for irrigation invariably improves the normal 
regime of the stream below the district irrigated. This has been 
demonstrated in Colorado, where practically the entire flow of the 
headwaters of the Rio Grande is appropriated for irrigation in the 
San Luis Valley, also in other parts of the arid west, in Europe and 
in India. Professor L. G. Carpenter, of the U. S. Agricultural Col- 
lege at Fort Collins, Colorado, has made a thorough study of this 
question, and has shown that-, despite the fact that practically the 
whole of the water of the Rio Grande in Colorado is diverted for 
irrigation, the normal flow of the stream below, where it passes into 
New Mexico, has been improved rather than diminished. 

But notwithstanding the well-known facts that were presented to 
the trial court, which decided that the Rio Grande is not navigable 
within the meaning of the law, and that " the soil of New Mexico is 
not burdened with a servitude in favor of the Republic of Mexico," 
the Government appealed. The action was dragged on from year 
to year by the Government appealing again and again ; and it has 
now become unmistakably evident that the suit has been main- 
tained, not in the interest of navigation some 1200 miles below, but 
in the interests of the " international dam " project. In other words, 
New Mexico — the " Cinderella " of the United States — is to be de- 
prived of practically her sole source of water supply for agricul- 
tural purposes, her most precious heritage ; in order that the pro- 
posed " international dam " at El Paso may lay claim to the whole 
of the flood waters of the Rio Grande and its affluents in New 
Mexico. 

Now we, in New Mexico, do not care how many '* international " 
dams are built below our southern boundar}^, provided always that 
we, above El Paso, are not restricted from impounding and using 
for irrigation and mining purposes the waters of our catchment 
area. We do not seek, nor do we desire, to restrain Colorado from 
appropriating the headwaters of the Rio Grande — waters of her 
catchment area ; and we maintain that we, in New Mexico, are 
equally entitled to the waters of our catchment area. 



10 



The Rio Bravo del Norte not Navigable. 

The Rio Grande is not a navigable river in New Mexico, nor is 
it navigable for over 1200 miles below our southern boundary; 
and conclusive proof has been submitted in the courts that — even 
under existing conditions, without storage dams — our torrential 
floods do not reach the so-called head of navigation in substantial 
quantities ; i. e., in sufficient amount to improve materially the 
" navigable capacity " of the stream. It is a matter of record that 
the great floods that pass down the Rio Grande in New Mexico in 
the spring and autumn do not affect substantially the- flow of the 
stream below the alleged head of navigation ; the waters of the lower 
Rio Grande coming chiefly from the Rio Pecos and a number of 
Texan rivers, and from the Rio Conchos, the San Juan and other 
confluent streams having their sources in the mountains of Old 
Mexico. Reports on file with the Geological Survey show that the 
rivers tributary to the Rio Grande below El Paso drain an immense 
area, 170,000 square miles as compared with a watershed of 25,000 
square miles above El Paso; and that the water supply below El 
Paso, allowing for the larger drainage area, is proportionately very 
much greater than the water supply above. New JNIexico is essen- 
tially an arid country, and its waterways are all torrential except 
the lower Pecos: whereas, below El Paso, many of >the principal 
Rio Grande confluents are permanent streams; the Rio Conchos, 
San Juan, Salado, Alamo and others have their sources in the lofty 
mountain ranges of Old Mexico and flow through a country where 
exceptionally heavy semi-tropical rains frequently fall during cer- 
tain periods of the year. 

Professor Robert T. Hill, of the Geological Survey, has been 
engaged for nearly fifteen years in making an official investigation 
of the basin of the Rio Grande, and in one of his reports he states 
that '' the Conchos is the mother stream of the Rio Grande aiid brings 
the first permayient water into the main riverT He declares that the 
river designated on our maps as the Rio Grande actually consists of 
three streams : the " Rio del Norte," rising in southern Colorado, 
flowing south through New Mexico, bisecting that territory ; the 
" Rio Bravo," practically a continuation of the Rio Conchos (the 
so-called main stream above the mouth of the Conchos being shown 
on Professor Hill's map by a dotted line onl}^ as far north as San 



11 

Marcial, New Mexico); and the "Rio Grande," from the mouth of 
the Pecos to the Gulf. 

New Mexico Alarmed. 

The people of New Mexico now fully recognize the great impor- 
tance of the issue at stake in the action to which I have referred. 
Both the Republican and Democratic parties introduced planks in 
their platforms deprecating the attempt to deprive the land-owners 
•of the Rio Grande Valley above El Paso of their right to impound 
the flood waters of the river for the irrigation of their lands. Vari- 
ous bodies throughout the Territory — boards of trade, chambers of 
commerce, commercial clubs, and so forth — have passed resolutions, 
which have been forwarded to the Department of Justice, the Sec- 
retary^ of State, and to other authorities, praying that the proceed- 
ings against the Rio Grande Dam and Irrigation Company be 
dropped, or brought to an early and final hearing. A petition was. 
•circulated throughout the Territory, and was signed by practically 
all of our representative men — land-owners, farmers, merchants, 
professional men, public officials, and others — praying the Federal 
Government not to destroy the farming interest of the Territory, 
and pointing out that : — 

" Under the direction of the U. S. Government, federal 
" officials had investigated the Rio Grande, and Major O. H. 
" Ernst, in his report to the Secretary of War, 1899, had de- 
" clared that the Rio Grande ' is not navigable, and cannot 
" be made so by open channel improvement.' 

" The U. S. Government has established a notable prece- 
'' dent by conserving the headwaters of the Mississippi for the 
" express purpose of improving the low water navigation of 
" that river. 

" Authentic historical records show that irrigation has been 
*' practised along the Rio Grande in New Mexico for over 300 
"years; the law of prior appropriation existed under the 
^' Mexican Republic at the time New Mexico was annexed to 
" the United States; and one of the first acts of the U. S. 
" Federal Government was to declare that ' the laws hereto- 
" fore in force concerning water-courses . . . shall con- 
" tinue in force.' 

" Congress, by reservation and survey of reservoir sites on 
" the Rio Grande in New Mexico, and by the appropriation 
" of large sums of money for such surveys, has clearly indi- 
" cated its purpose to treat the waters of the Rio Grande as 
'' suitable for irrigation only. 

" The Government having surveyed and selected reservoir 



12 

sites on the Rio Grande, which subsequently were thrown 
" open to private and corporate location ; and Government 
" experts having declared the Rio Grande to be non-naviga- 
" ble in New Mexico, manifestly it was not necessary for the 
" Rio Grande Dam and Irrigation Company (its plans had 
" been formally approved by the Secretary of the Interior) to 
" apply to the Secretary of War for permission to impound 
" the flood waters of the Rio Grande at Elephant Butte." 

Further, year after year, Governor Otero, in his "Annual Report 
to the Secretary of the Interior," has declared in explicit terms that : 

" The greatest setback New Mexico has ever had was that 
" resulting from the stoppage of work on what was familiarly 
" known as the Elephant Butte Dam ... for with the 
" completion of this work will blossom forth one of the rich- 
" est agricultural, fruit and dairy sections in the West." 

. Last session of Congress, Governor Otero (in his protest before the 
Senate Committee on Foreign Relations), speaking of the attempt 
that was then being made to pass a bill prohibiting irrigation enter- 
prises in New Mexico, urged that New Mexico's " helplessness in the 
national councils should be her most potent argument for protec- 
tion." He also said : 

" We, perforce, bow with submission to the will of Congress, 
" but we cannot find words sufficiently strong with which to 
" protest against the attempt to prohibit the construction of 
" reservoirs upon our principal stream and to deprive our 
" people of the use of even the limited waters at our hand for 
" the purposes of agriculture." 

Mr. Chairman and Gentlemen of the Committee, we of New 
Mexico warmly support the admission of Oklahoma and Arizona as 
states, but we maintain that so long as our most valuable asset is 
threatened by such bills as those introduced year after year in be- 
half of the proposed El Paso dam, our claim for Statehood is of 
paramount importance. 

Yours obediently, Nathan E. Boyd, M. D. 

February 8, 1902. 



CULBERS0N=5TEPHENS BILL. 

S. 453. H. R. 115. 



NEW MEXICO'S FUTURE THREATENED BY EL PASO 
"INTERNATIONAL DAM" SCHEME. 



ANALYSIS OF BILL. 



To the Committee on Territories, 

House oj Representatives, Washington, D. C. 

Gentlemen : Mr. Stephens of Texas, when addressing j^ou on 
Saturday in re his bill H. R. 115 (57th Congress — 1st session), 
attempted to disprove my assertion, when I appeared before 3'ou on 
Friday last, that his bill, or any similar bill, if passed, would be 
unjust and vicious in its effect, as well as inevitably fatal to the 
farming interest of the people of New Mexico. I do not presume 
to question Mr. Stephens' good faith in the premises (doubtless the 
parties who are really responsible for the bill have mided Mr 
Stephens as the}' have misled others) ; but I crave your permission 
to submit for your consideration the following analysis of his bill, 
which I am emboldened to say cannot fail to prove to you that Mr. 
Stephens is in error when he says that " his bill merel}' provides for 
an equitable distribution of the waters of the Rio Grande, and is 
not intended to inflict injury upon the people of New Mexico." 

Mr. Stephens made a point of emphasizing his statement that the 
bill in question " is the direct outcome of congressional action.'' 
By this, I take it, Mr. Stephens refers to the Concurrent Resolution 
dated April 29, 1890 (51st Congress — 1st session), which reads as 
follows : 

(13) 



14 



" Concurrent Resolution 

" Concerning the irrigation of arid lands in the Valley of the 
Rio Grande River, the construction of a dam across said 
river at or near El Paso, Texas, for the storage of its 
waste waters, and for other purposes. 

" Whereas the Rio Grande River is the boundary line be- 
tween the United States and Mexico, and whereas b}^ means 
of irrigating ditches and canals taking the water from the 
said river, and other causes, the usual supply of water there- 
from has been exhausted before it reaches the point where it 
divides the United States of America from the Republic of 
Mexico, thereby rendering the lands in its valley arid and 
unproductive, to the great detriment of the citizens of the 
two countries who live along its course ; and 

" Whereas in former years annual floods in said river have 
been such as to change the channel thereof, producing serious 
avulsions and oftentimes and in many places leaving large 
tracts of land belonging to the people of the United States 
on the Mexican side of the river, and the Mexican lands on 
the American side, thus producing a confusion of boundary, 
and disturbance of public and private titles to lands, as well 
as provoking conflicts of jurisdiction between the two govern- 
ments, offering facilities for smuggling, promoting the evasion, 
and preventing the collection of revenues by the respective 
countries; and 

" Whereas these conditions are a standing menace to the 
harmony and prosperity of the citizens of said countries, and 
the amicable and orderl}^ administration of their respective 
governments ; therefore 

" Resolved by the Senate {the House of Representatives concur- 
ring), That the President be requested, if, in his opinion, it is 
not incompatible with the public interests, to enter into nego- 
tiations with the Governmeiit of Mexico with a view to the 
remedying of all such difficulties as are mentioned in the 
preamble to this resolution, and such other matters connected 
therewith as may be better adjusted by agreement or con- 
vention between the two governments. 

" The President is also requested to include in the negotia- 
tion with the Government of Mexico all other subjects which 
may be deemed to affect the present or j^rospective relations 
of both governments." 

I enclose, for your consideration, copy of Mr. Stephens' bill (H. R. 
115); and I would point out that while the above-quoted Concur- 
rent Resolution is obviously the basis of the bill, it is equally ob- 
vious that the resolution,- like the bill itself, is the " outcome " of an 



1 



15 

attempt to deprive the people of New Mexico of their right to utilize 
the waters of their catchment area, and manifestly has emanated 
from the same source ; namely, the promoters of the " international 
dam " project — certain of Mr. Stephens' constituents in the city of 
El Paso, Texas, and their associate speculators in lands on the 
Mexican side of the river immediately below El Paso and in the 
large block of land that would have to be condemned for reservoir 
purposes if the proposed " international dam " be built. The people 
of El Paso favor the Elephant Butte dam. 

In my address before you on Friday, I stated that the attempt to 
deprive New Mexico of her water rights began over ten years ago ; 
and in making the statement I especially had in mind the Resolu- 
tion above quoted. As this Resolution is the only authority for the 
large expenditures since made to determine if it be feasible to con- 
struct a storage dam at El Paso, and as it has been the basis of the 
various measures that have been proposed with a view to legislating 
out of existence New Mexico's right to the flood waters of her streams, 
it is j^roper to examine it somewhat critically. 

In the first place, it will be observed that in the Resolution the 
only reference to the building of a dam across the Rio Grande is 
contained in the title to the Resolution. The building of a dam is 
not again mentioned, either in the preamble or in the body of the 
Resolution. 

The firstclause of the preamble declares in substance that by means 
of irrigating ditches and canals taking water from the Rio Grande 
(in the State of Colorado and in the Territory of New Mexico), the 
flow of the stream has become so greatly diminished that the farm- 
ers living below the southern boundary of New Mexico, along the 
borders of the river in the State of Texas and in the Republic of 
Mexico, have been deprived of their usual supply of water for the 
irrigation of their lands. This statement, as I shall be able to demon- 
trate, is incorrect. 

Drought, not Irrigation, Cause of Diminished Flow. 

Irrigation in Colorado and New Mexico has not materially dimin- 
ished the flow of the Rio Grande at El Paso. Prior to 1880, there was 
relativel}^ but little irrigation practised along the Rio Grande in Colo- 
rado ; and there has been no large increase of irrigation in New Mexico 
within the past thirty years. To the contrary, according to Mr- 
W. W. Follett, the Engineer to the United States International 
(Water) Boundary Commission specially deputed b}^ the United 



16 

States Government to investigate the flow and characteristics of the 
Rio Grande and the question of Rio Grande irrigation generally, 
there has been a considerable decrease in the area irrigated in New 
Mexico within the past ten years. In his official report, Mr. Follett 
says that the total area now irrigated in New Mexico is only about 
190,000 acres, and adds that : 

"A large percentage of the irrigation is ancient; over 75 % of it 
dates back to 1860, while 20 % or 30 % of it is of unknown age, 
but over 100 years old. . . . 

"The use of water for irrigation in New Mexico is not the cause of 
this decreased flow " — at El Paso. 

Referring to the use of the waters of the upper Rio Grande for 
irrigation in Colorado, Mr. Follett says : 

" In 1879 the use of the water had there extended to the irriga- 
tion of 122,000 acres. . . . This area increased steadily up to 
1890. . . . The next two years saw a large increase, over 350,000 
acres being watered in 1891, and nearly 400,000 acres in 1892." 

Now we have official reports, made by Government engineers 
and experts, which show that the use of the flood waters of the 
upper Rio Grande for irrigation in Colorado has improved the 
normal regime of the stream below, where that river passes into 
New Mexico. If the utilization of the flood waters of the Rio 
Grande for irrigation in Colorado improves the flow of the stream 
below the districts irrigated, it logically follows that a like utiliza- 
tion of the waters of the Rio Grande and its tributaries in New 
Mexico will also tend to improve the normal flow of the stream 
below, say where the river first becomes the boundar}^ line between 
Texas and the Republic of Mexico. 

I do not deny that within the past ten years the normal flow of 
the Rio Grande at El Paso has been somewhat less than it was 
during certain of the more favorable years prior thereto. But the 
reason for the diminution in flow is a matter of historic record. All 
of New Mexico, and the greater part of western and southern 
Texas, have for the past ten years or more suffered from severe 
drought, so extensive in fact that vast cattle interests have been 
destroyed ; many thousands of acres of irrigated lands have gone 
out of cultivation in New Mexico, in Texas, and in the Mexican 
States of Chihuahua and Coahuila ; and many of the Rio Grande 
tributaries, formerly perennial in character, have become purely 



17 

torrential streams in consequence of and during the period of the 
drought. Within the past two years there has been a break in the 
drought, the annual precipitation having increased, and several of 
the streams in question are again becoming perennial. 

General Anson Mills, Director of the United States International 
(Water) Boundary Commission, chief promoter of the " interna- 
tional dam" project, sa3^s in one of his reports that '^ from personal 
" observation I know that these seasons of flood and drought were 
" of about the same character thirty years ago " (Major Anson Mills, 
10 U. S. Cav.j Rep. Spec. Cora. Sen., Vols. 3 and 4, p. 39). It is significant 
that the report just quoted was made many years ago, long before the 
inception of the Elephant Butte Dam enterprise. More recently, 
it has suited General Anson Mills's purpose to maintain that " forty 
" years ago there was comparatively an abundance of water in the 
^' river and that it seldom went dry " — vide\\\& sworn statement 
dated June 23, 1897. 

As a matter of fact, there is ample authentic evidence to show 
that these periods of drought have occurred from time to time since 
the river first came under the observation of the early Spanish and 
subsequent American settlers. Overwhelming proof, taken from 
official records, could be cited in support of my argument that irri- 
gation in Colorado and in New Mexico is not, to any marked de- 
gree, responsible for the diminished flow of the Rio Grande at 
El Paso. But, for obvious reasons, it is preferable to give as my 
authority reports emanating from the promoters and supporters of 
Mr. Stephens' bill. 

General Anson Mills has stated in one of his numerous letters to 
the Secretary of State that " tJtere ivas, prior to 1880, a great scarcity 
" of ivater in the Bio Grande at El Paso;" and as I have already 
shown by Mr. Follett's report, there has been no increase of irriga- 
tion in New Mexico for many years. Again, according to Mr. 
Follett, the bulk of the irrigation in Colorado " rapidly increased 
" from 1880 to 1890, over 350,000 acres being watered in 1891, and 
" nearly 400,000 acres in 1892." Yet the great scarcity of water at 
El Paso was a matter of record j)rior to 1880 — according to General 
Anson Mills, and official records show that the scarcity of water 
since 1880 is accounted for by the prolonged drought. 

Parenthetically, it may be remarked however, that so far as Gen- 
eral Anson Mills's evidence is concerned, it loses somewhat in value 
when it is known that he has stated in an affidavit dated June 23, 
1897, that " the Rio Grande could be navigated by steamboats for 
2 



18 

" hundreds of miles both above and below El Paso, Texas." Com- 
ment upon this very remarkable statement is superfluous, further 
than to marvel at the audacity evidenced by the utter disregard it 
shows for the law making perjury a criminal offence. 

It was by means of General Anson Mills's official, and supposedly 
reliable, reports as to the " navigability " of the Rio Grande in New 
Mexico that the Federal Authorities were seduced (I use the word 
advisedly) into instituting proceedings in the courts some five years 
ago enjoining the construction of storage dams on the Rio Grande 
in New Mexico. 

So much for the first clause in the preamble of the Concurrent 
Resolution above quoted ! 

International Dam Bill. 

Coming now to the second clause of the preamble of the Concur- 
rent Resolution, we find that it refers merely to the occasional 
changes in the course of the river where it forms the boundary line 
between the United States and Mexico. 

Now upon these two clauses, the Resolution, like Mr. Stephens' 
bill (the title and preamble of which are on the same lines as the 
title and preamble of the Resolution), is built up. 

Attention is specifically called to this Resolution, first, because 
Mr. Stephens has obviously taken it as the basis for his bill ; and 
second, and chiefly, because its bungling terms evidence that it had 
its inception with {parties not properly connected with Congress, 
or familiar with the making of laws, and therefore not with Mr. 
Stephens. Doubtless, the tyro in legislation who drafted the Reso- 
lution had in mind the authorization of a treaty to provide for an 
"international dam." But usually such authorization would not 
be looked for in the title of the Resolution only ; and the authori- 
tative part is to be found only in its preamble, and where such pre- 
amble is indirectly referred to and made part of the resolution 
proper. From any point of view, this resolution must be considered 
unique and altogether sui generis; for, taken by itself and analysed,, 
certainly it cannot be regarded as a proper authorization either to 
construct an " international dam " at El Paso, or to make expensive 
surveys to ascertain whether such a dam could be constructed. 

It will be noted that in the third clause of the preamble of Mr. 
Stephens' bill, it is proposed by the Government of Mexico and the 
Government of the United States that the alleged deficiency in the 



19 

flow of the Rio Grande shall be made good b}'^ impounding the flood 
waters of the river by means of an " international " dam and reser- 
voir. But admitting, for the sake of argument, the expediency of 
building an " international dam " as a means of satisfying (Old) 
Mexico's preposterous claim against the United States, loliy should 
the people of New Mexico be deprived of their right to the waters 
of their catchment area? Does Mr. Stephens maintain that tlie 
people of New Mexico do not enjoy the same right to utilize the 
waters of the Rio Grande for the irrigation of their lands, as that 
enjoyed by the people of Colorado to utilize their waters for the 
irrigation of their lands ? Apparently he does, if we may judge by 
the fact that in one of his previous "international dam" bills he 
sought to inliibit tiie impounding of the flood waters of the Rio 
Grande in Colorado as well as in New Mexico, while now the Terri- 
tory only is threatened. 

What greater proof is needed in support of the argument that, in 
regard to their constitutional rights, the citizens of New Mexico^-a 
territory — are less fortunately situated than the citizens of Colo- 
rado — a state ? The bill, if enacted, will not inhibit the further 
appropriation or the impounding of the waters of the Rio Grande 
in the State of Colorado — the prohibition is confined to the Rio 
Grande and its tributaries " in the Territory of New Mexico ; " and 
it is hardly necessary for me to point out that if the people of New 
Mexico are now prohibited from any further use of the waters of 
the Rio Grande and its affluents within the territory, then the 
several millions of acres of irrigable lands between the Colorado 
line and El Paso, Texas, must for ever remain practically a useless 
waste. 

But the supporters of the " international dam " project, who have 
so long schemed to deprive New Mexico of her right to the use of 
the waters of her catchment area, now know tliat they cannot invade 
a sovereign state with such legislation. Therefore, they have sought 
to rely upon the plenary power of the Federal Government over 
territories ; they have invoked what they call the spirit of Article 7 
of the treaty of Guadalupe Hidalgo ; and they have instigated the 
filing of fictitious claims with the State Department by citizens of 
Mexico, claims set up under the so-called spirit of the said Article, 
amounting in the aggregate to over $35,700,000, — all with a view 
to inducing Congress to deprive New Mexico of her right to im- 
pound the flood waters of her streams. 

Mr. Stephens argues that his bill only provides for " the equitable 



20 

-distribution of the waters of the Rio Grande; " and I assume that 
Mr. Stephens believes such to be the case. But the fact remains that 
although the estimated storage capacity of the proposed " interna- 
tional dam " is only 537,340 acre feet {vide Mr. Follett's report 
dated September 18, 1889), Mr. Stephens' bill, if the wording of it 
means anything, specifically iidiibits the construction of storage 
dams on the Rio Grande or its tributaries in New Mexico. Gen- 
eral Anson Mills, however, estimates that a dam 60 feet high (at 
El Paso) will submerge about 60,000 acres, and create a storage 
reservoir with a capacity of 108,000,000,000 cubic feet— 2,419,338 
acre feet (vide report to the Secretary of State dated September 10, 
1888, see House Doc. No. 125, 54th Congress — 1st session). 

Clauses 4 and 5 of tlie preamble of Mr. Stephens' bill speak for 
themselves ; and clause 6 improperly presupposes that the flow (of 
the Rio Grande) is insufficient for more than one reservoir. 

The last clause of the preamble of the bill apparently is intended 
to justify the two sections of the bill, the first of which provides 
that — 

" Nothing in the Acts of March 3, 1891, " January 1, 1895,' 
February 26, 1897, and May 11, 1898 (Acts providing for and 
authorizing the building of storage reservoirs in New Mexico), 
shall be so construed as to authorize " the appropriation and 
" storage of waters of the Rio Grande' or its tributaries in the 
" Territory of New Mexico to which others have right by 
"prior appropriation." Then follow certain stringent penal- 
ties, and the provision that the " unlawful appropriating and 
" storage of water in this Act mentioned may be prevented, 
"and the dam, reservoir, or other means used for impound- 
" ing the water nia}^ be removed by the injunction of any 
" circuit court exercising jurisdiction in any district in which 
" said water may be appropriated or stored." 

No amount of sophistical quibbling can obscure the patent pur- 
pose and certain effect of this bill. It provides in substance that 
the proposed " international dam " and reservoir shall constitute a 
priority right to the appropriation of the waters of the Rio Grande; 
that the building of all other dams and storage reservoirs on the 
Rio Grande above El Paso shall be " restrained; " that every person 
and corporation " appropriating and storing the said waters in this 
"Act mentioned shall be deemed guilty of a misdemeanor." 

Mr. Stephens says that he leaves it to any unbiassed man that his 



21 

bill only provides for the equitable distribution of the waters of the 
Rio Grande. Gentlemen, I leave it to your unbiassed minds that Mr. 
Stephens' bill provides for quite the contrary, and evidences a 
deliberate purpose to take advantage of New Mexico's defenceless 
condition as a territory. 

Admitting the maximum amount of land irrigable in the valley 
below El Paso, on both the Mexican and Texan sides of the river, 
to be 95,000 acres {vide Mr. Follett's report), although the investiga- 
tion of the International Boundary Commission, of which General 
Anson Mills is chief, showed that approximately but 40,000 acres 
had been irrigated in the valley below El Paso (vide Senate Doc. No. 
229, ooth Congress — 2nd session) ; and allowing 1 J acre feet per acre 
for each year's irrigation — which is fully 33 J per cent. . more than 
sufficient to provide an adequate supply of water : a reservoir of the 
capacity given by Mr. Follett, if only filled once during each year, 
would provide nearly four times as much water as would be neces- 
sary, even after making a liberal allowance for evaporation and 
seepage. 

If, however, General Anson Mills's figures are taken throughout, 
viz., 40,000 acres irrigated in the valley below El Paso, requiring 1 
acre foot of water per acre per annum (he says he " considers 12 
inches will be sufficient"), the contemplated injustice to New Mexico 
becomes all the more glaring. 

Alleged Purpose of Bill. 

The main object for which it is alleged the proposed " interna- 
tional dam " is intended, is to supply the farmers in the valley below 
El Paso with as much water as they have appropriated heretofore 
for the irrigation of their lands, and thereby to make good the 
United States obligation under its treaty with Mexico. Now, as 
already shown, the United States International (Water) Boundary 
Commission, of which General Anson Mills is chief, found that not 
more than 40,000 acres (our engineers put the total at less than 
20,000 acres) had ever been irrigated in any one year in the valley 
below El Paso, consequently, as one acre foot of water per acre per 
annum is considered by General Anson Mills to be sufficient, and 
would be sufficient, the farmers in the valley below El Paso — Mex- 
ican and Texan — cannot justly hu' claim to more than 40,000 acre 
feet of water a year for their lands, plus 25 per cent, at most to 
cover loss by evaporation and seepage, say 50,000 acre feet in all. 



22 

But General Anson Mills, in his extreme anxiety to do justice (?) 
to the Mexican and Texan irrigators in the valley below El Paso, 
regardless of the consequences to the farmers just above in New 
Mexico and to the rights of the people of the territory generally, 
proposes to build a dam 60 feet liigh, that will submerge for reservoir 
purposes 60,000 acres of valle}' land, 99 per cent, of it irrigable and 
in New Mexico (in order to provide water for 40,000 acres below, be 
it remembered), thus creating a reservoir which, if tilled but once 
a year, will impound 108,000,000,000 cubic feet of water— 2,419,338 
acre feet — more than sufficient to provide fifty times as much water as 
the IfOfiOO acres heretofore irrigated below could require or justly be enti- 
tled to receive. 

Verily an extraordinary proposition, to say the least. In fact, the 
more we look into the object of the promoters of the " international 
dam " project, the more " an unbiassed mind " must become con- 
vinced that Mr. Stephens' bill provides for something very different 
from " an equitable distribution of the waters of the Rio Grande." 

But, with a line disregard for the rights of the people of New 
Mexico, General Anson Mills proposes to utilize the surplus waters, 
to be impounded in the " international dam," for the maintenance 
of " a constant flow in the river below," and for " water motors to 
furnish power to the future manufacturing cities on each side," i.e., 
on the Texan and Mexican sides of the Rio Grande below El Paso 
{vide House Document No. 125, 54th Congress — 1st session). 

Unhappy New Mexico ! With an area of 122,580 square miles, 
equal to the combined areas of Maine, Vermont, New Hampshire, 
Massachusetts, Rhode Island, Connecticut, New York and New Jer- 
sey, and with a present irrigated area not exceeding {vide Follett's 
report) 190,000 acres, she is to be denied the right to impound and 
appropriate any of the flood waters of the Rio Grande for the main- 
ten mce of her farming interest : merel}" in order that an " interna- 
tional dam " may be built at El Paso, appropriating the whole of 
the flood waters of the Rio Grande and its tributaries betvv^een 
Colorado and El Paso, Texas, for the irrigation of 40,000 acres of 
Mexican and Texan lands ; for the maintenance of a " constant and 
unvarying flow of water in the river bed ; " and for " water motors " 
to furnish " power to future manufticturing cities " on the Texan and 
Mexican banks of the Rio Grande — below El Paso. 

And this is what Mr. Stephens calls " an equitable distribution 
of the waters of the Rio Grande ! " 

But the second section of the bill is not onlv to autliorize the Sec- 



23 

retary of State to proceed with the consummation of the proposed 
treaty between the United States and Mexico ; to cede a certain por- 
tion of the Territory of New Mexico to the Republic of Mexico (see 
proposed Treaty, Sen. Doc. 229) ; and to undertake the novel duty 
of building a dam : it also limits him to plans and specifications 
not set out in the bill. And surely it is unusual, not to say absurd, 
that Congress should be asked to authorize the Secretary of 
State to negotiate a treaty ; for, needless to say, the Executive already 
has such power? Again, as a rule, dams are built by the War De- 
partment, not by the State Department ; and a proposal to authorize 
the Secretary of State to proceed with the construction of said dam 
and reservoir is remarkable, if nothing more. 

But I take it that neither the Committee to which Mr. Stephens' 
bill is referred, nor the House, will feel warranted in launching 
such a scheme, for such a purpose, at an expense of $2,317,113.36 
(Mr. Stephens is wonderfully circumstantial as to the cost of the 
proposed dam, notwithstanding the well-known engineering diffi- 
culties at the site proposed) without thoroughly investigating, first, 
New Mexico's rights in the premises, and second, the feasibility of 
building a dam at El Paso, where the Government engineers failed 
to find suitable bed-rock at even 95 feet below the bed of the river. 

Bill Would Destroy Territory's Chief Source of 
Maintenance. 

Generally speaking, the bill, if passed, would nullify the irriga- 
tion laws of New Mexico and the laws of the United States pertain- 
ing thereto; would inhibit the construction of a dam and reservoir 
at Elephant Butte, or at au}^ of the dam sites surve.yed by the Gov- 
ernment and thrown open for public location on the Rio Grande in 
New Mexico; and would prohibit any further use of the waters of 
the Rio Grande and its afiiuents in any part of the Territory — 
thus for all time limiting irrigation in New Mexico to the present 
area under cultivation, viz., 190,000 acres, although by careful con- 
servation of the flood waters of the Territory's catchment area, and 
their distribution for irrigation purposes, several million acres are 
irrigable. Further, the whole body of laws relating to the use 
of non-navigable waters for irrigation, founded upon definite and 
explicit statutes of the United States and upon decisions of the 
Supreme Court, would be swept aside. In fact, it would not 
only repeal and nullify statutes and customs of long standing, but 



24 

also, to quote Governor Otero, " it would deprive the Territory of 
" its chief source of income and its main dependence for existence."' 
It would be a radical inversion of the existing irrigation laws; 'and 
in principle it threatens the business of irrigation throughout all 
the territories. If Congress may prohibit the use of the waters of 
the Rio Grande for irrigation in New Mexico, it may likewise pro- 
hibit tlie use of the waters of non-navigable streams in Arizona and 
in Oklahoma. The bill makes an invidious and indefensible dis- 
tinction between the citizens of a state and those of a territory. 

Therefore, the bill, and the policy responsible for it, are a stand- 
ing menace to New Mexico, also to Arizona and Oklahoma ; and I 
have discussed the matter at such length because I consider the 
grave danger threatened to be the most cogent argument in behalf 
of Statehood. 

Territory's Water Rights Persistently Attacked in Congress. 

The right of the citizens of the Territory to impound the flood 
waters of the Rio Grande has been attacked not in the courts only 
(for five years the Federal Government has been seeking to enjoin 
the construction of a storage dam on the Rio Grande at Elephant 
Butte), but again, and again, and again, our enemies have attempted 
to destro}'' our water rights by Act of Congress ; not only by means 
of bills similar to those introduced b}'' Mr. Stephens and Senator 
Culberson, but from time to time by means of artfully worded 
riders tacked on to otherwise innocent non-contentious measures — 
riders which, if allowed to pass, would have rendered impossible 
any considerable increase of irrigation in New Mexico. For in- 
stance, "An act to permit the right of way through public lands for 
" tramroads and canals, and for other purposes," was amended as 
follows : 

" None of the existing laws shall be so construed as to au- 
thorize the appropriation or storage of the waters of any 
stream or river, state, interstate, or international, to which others 
below have right by prior appropriation, or the obstruction 
or interference with the navigable capacity of such streams 
or rivers, and such appropriation or storage, obstruction or 
interference, is hereby prohibited." 

Fortunately, the bill was brought to the notice of my attorney 
here, Mr. J. H. McGowan, and he secured its recall from the 
House. 



25 

But the friends of the "international dam " scheme were not to 
be so easily defeated, and later they succeeded in having the follow- 
ing amendment substituted : 

" That the Secretary of War is hereby authorized to secure 
in the State of Texas the necessary huids on which to build 
a dam on the Rio Grande at or near El Paso in that State. 
No reservoir for the storage of water shall be built on the 
said river within the boundaries of the Territory of New 
Mexico without an act of Congress authorizing the same." 

Here again, my attorney defeated the enemy by having the bill 
sent back to the Committee, where the amendment was dropped. 

It is obvious from the above that so long as New Mexico remains 
a territory, and subject to the plenary powers of Congress, our water 
rights will be in constant danger of some form of congressional re- 
striction ; and that, with the history of the Rio Grande Dam and 
Irrigation Company in evidence, it will be practically impossible to 
find capital for storage dams and large irrigation undertakings in 
the territory. Surely it cannot be denied that if ever a territory 
required Statehood for the protection of the rights of her people 
and the encouragement of her material advancement, that territory 
is New Mexico ? 

Departmental Injustice. 

In order that you may the more fully understand the vital im- 
portance of Statehood as the only certain means of protecting the 
right of our citizens to use the waters of our streams, I would call 
your attention to another feature of the vicious attack the pro- 
moters of the " international dam " project have so long maintained 
against New Mexico. 

On February 26, 1898, the Senate passed a resolution requesting 
the President : 

"If not incompatible with the public interest, to transmit 
to the Senate the proceedings of the international commission 
authorized in the concurrent resolution of (Jongress of April 
twenty-ninth, eighteen hundred and ninety, and a subsequent 
international convention between the United States and 
Mexico of May sixth, eighteen hundred and ninety-six, and 
also the correspondence relating thereto with Mexico by the 
Department of the Interior, Department of War, and Depart- 
ment of Justice, as well as the Department of State, relat- 
ing to the equitable distribution of the waters of the Rio 



26 

Grande River, including the draft of an incomplete treaty- 
bet ween said Governments, negotiated between the late Sec- 
retary of State, Mr. Olne}^ on the part of the United States 
and Mr. Romero on the part of Mexico, and all the corre- 
spondence between said officials relating thereto." 

Now, on the face of it, this is a seemingly innocent request. But 
the resulting document (Senate Doc. No. 229, 55th Congress — 
second session) was anything but innocent. 

From the wording of the Resolution, it may be inferred that the 
Senate desired all the information obtainable in the Departments 
touching the subject thereof, but this Resolution and the resulting 
Document, like the Concurrent Resolution first above mentioned 
and Mr. Stephens' bill, was inspired by the promoters of the " in- 
ternational dam " scheme ; and in some mysterious way. Senate 
Document No. 229 as above was so manipulated during the process 
of its compilation that every paper inimical to the " international 
dam " project and to Mexico's claim was either suppressed as a 
whole, or quoted in a garbled form. Even Attorney General Har- 
mon's opinion, an authoritative and definite official statement 
directly bearing on the subject, was entirely omitted. 

It is no exaggeration to say that if General Anson Mills, and 
the attorneys of the Mexican Government, had been handed 
the files of the Departments, from which to compile a response 
to the Senate Resolution, they could not have produced a docu- 
ment more favorable to the " international dam " project and to 
the Mexican claim. 

Attorney General Harmon, in his official statement of opinion 
relative to the rights of the people of New Mexico, uses this lan- 
guage : 

" The rules, principles, and precedents of international law 
impose no duty or obligation upon the United States of deny- 
ing to its inhabitants the use of tlie water of that part of the 
Rio Grande lying entirely within the Unfted States, although 
such use results in reducing the volume of water in the river 
below the point where it ceases to be entirely within the 
United States. 

" The fact that there is not enough w^ater in the Rio Grande 
for the use of the inhabitants of both countries for irrigation 
purposes does not give Mexico the right to subject the United 
States to the burden of arresting its development and deny- 
ing to its inhabitants the use of a provision which nature has 
supplied entirely within its own territory. The recognition 



27 

of such a right is entirely inconsistent with the sovereignty 
of the United States over its national domain." 

Naturally one would suppose that as the Attorney General had 
been called upon for an opinion in regard to the Rio Grande ques- 
tion, such opinion would have been included in Senate Docu- 
ment No. 229, even if it had necessitated the printing in small type 
of some of General Anson Mills's communications to the several 
departments. 

Bfit the document was desired for a specific and ulterior object ; 
and the inclusion in it of Attorney General Harmon's opinion 
would not have suited the purpose of the gentlemen who secured 
the passage of the Resolution. 

However, Senate Document No. 229 has served a purpose not 
contemplated by those responsible for the drafting of the Resolu- 
tion or the compilation of the resulting document itself. It has 
materially helped to arouse the people of New Mexico to a proper 
appreciation of the danger of their position as wards of the Federal 
Government. The brazen omission of a dozen or more important 
papers that should have been included in Document No. 229 has 
opened the eyes of not a few Members of Congress to the real 
motive prompting bills purporting to provide for the " equitable 
distribution of the waters of the Rio Grande ; " and, Gentlemen, 
I am moved to hope that it will also serve to convince you that 
more than either Arizona or Oklahoma, New Mexico stands in 
pressing need of early admission into the sisterhood of States. 

Yours obediently, NATHAN E. BOYD, M. D. 

February 10, 1902. 



28 



" It is an important question of public policy 
whether to establish water rights to irrigate thou- 
sands of acres in the lower regions, or to establish 
the right to irrigate millions of acres above. That 
is the problem confronting us in the Valley of the 
Rio Grande. . . . Should it be declared that 
the waters of the upper region must flow to the 
lower region, it would cut off millions of acres 
that could be irrigated above, to supply a few thou- 
sand acres below. So it is necessary for the 
ultimate development of that country that the 
people of Colorado be allowed to use the waters 
of that State, and that the people of the upper 
tributaries and upper valleys of New Mexico 
be permitted to use the waters there." — State- 
ment by Major J. W. Poivell, Director of the U. S. Geo- 
logical Survey, before the Committee on Irrigation, Feb- 
ruary 8, 1890. 

" The Government of the United States cannot 
interfere with the water of Colorado. ... I find 
on the Calendar a bill to provide for the equitable 
distribution of the waters of the Rio Grande between 
the United States of America and the United States 
of Mexico ; and I find in this bill a provision that 
prohibits the Territory of New Mexico from appro- 
priating any more of the water in that Territoiy. 
. . . They very kindly left out Colorado, where 
this river rises . . . but I suppose we could 
legislate in that way for New Mexico." — Senator 
Teller, of Colorado, Senate, January 28, 1901. 



COGENT ARGUMENT FOR STATEHOOD 



Attempt to Deprive New Mexico of Her Right 

TO THE Waters of the Rio Grande 

AND ITS Tributaries. 



RUIN FOR NEW MEXICO'S FARMERS. 



PROPOSED TREATY WITH MEXICO. 

[Translation.] 

The Government of the United States of Mexico and the Govern- 
ment of the United States of America, wishing to put an end in a 
friendly and equitable manner to the controvers}'- arising from the 
use in the State of Colorado and the Territory of New Mexico of 
the waters of the Rio Bravo del Norte and its tributaries, consti- 
tuting the dividing line between the two countries from Paso del 
Norte to its mouth in the Gulf of Mexico, owing to which use the 
people living on its banks below Paso del Norte, who had a prior 
right to these waters .from having used them in the irrigation of 
their lands for nearly four hundred years, have been deprived |of 
them, as it appears that tliat part of the said river between El Paso 
and the Conchos River is left without water during several months 
of the year, and as the freshets occasion changes by avulsion and 
erosion, giving rise to frequent disputes and difficulties, have agreed, 
after considering the report of the special mixed commission ap- 
pointed to investigate this subject and to suggest a fair settlement 
securing the mutual rights of the two countries interested, to con- 
clude a convention for that purpose, and have appointed their re- 
spective plenipotentiaries : 

The President of the United States of Mexico, by his envoy ex- 
traordinary and minister plenipotentiary at Washington ; and 

The President of the United States of America, by his Secretary 
of State; 

"Who, after showing each other their respective full powers, and 

(29) 



30 

finding them in good and due form, have agreed upon the following 
articles : 

Article I, 

To attain the ends mentioned in the preamble to this convention^ 
an international dam shall be constructed in the Rio Bravo del 

Norte within as short time as possible, not exceeding years, 

about three miles above El Paso, fifteen miles long and about tliree 
and a lialf miles wide, in the manner and upon the conditions pro- 
posed by the mixed commission. 

Article II. 

In compensation for the damage suffered by Mexican citizens in 
consequence of the use of the waters of the Rio Bravo del Norte in 
the State of Colorado and the Territory of New Mexico, the Gov- 
ernment of the United States of America will bear all the expenses 
necessary for the construction of the dam in the manner proposed in 
the opinion of the special commission, and will cede to the Govern- 
ment of Mexico the territory referred to in Article III of this con- 
vention. 

Article III. 

In order that the daiu the construction of which is provided for 
by this convention may have a real international character — that 
is to say, that it may be constructed upon the dividing line between 
the two countries — the United States of America agrees to cede to 
Mexico such territory as may be necessary, which, according to the 
report of the special mixed commission, will not exceed 100 acres, 
in order that the southern side of the dam may be in Mexican 
territory. 

The Government of the United States of Mexico will recognize 
and respect, in ceded territory, the rights granted by the Govern- 
ment of the United States of America to the Southern Pacific Rail- 
road Company on that part of its track passing through the terri- 
tory ceded. 

Article IV. 

The Government of the United States of Mexico will appoint such 
officer or agents as it may deem expedient to superintend the con- 
struction of the dam, in order that it may be in conformity with the 
provisions of this convention and the specifications of the work. 

Article V. 

Half of the water contained in the dam shall belong to each of 
the contracting parties, and each shall appoint a commissioner and 
such other employees as it may think necessary to arrange the equal 



31 

apportionment of the water, and to see that what is left, in case 
either or both the Governments do not consume the half belonging 
to them, is disposed of in such a way that the dam will be eniptied 
and filled with regularity, and that, so far as possible, a uniform cur- 
rent will be maintained in the river, so as to prevent changes in its 
bed by erosion or avulsion. In doubtful cases, the decision of the 
two commissioners shall be regarded as binding upon both Govern- 
ments unless one of them shall disapprove it within one month, in 
which case the two Governments shall take cognizance of the mat- 
ter themselves, and decide it amicably in such manner as shall appear 
to them just and expedient. 

The same course shall be adopted when the commissioners dis- 
agree as to the point causing the doubt or dispute, in which case 
each commissioner shall draw up his opinion in writing and present 
it to his own Government. 

Article VI. 

To prevent new appropriations of water which might still more 
diminish the volume of the Rio Bravo del Norte (Rio Grande) here- 
after, and thereby prevent the passage of the water necessary to fill 
the dam to which this convention refers, the Government of the 
United States of America binds itself to issue the necessary regula- 
tions, and to apply, if necessary, to the Congress of the United States 
of America for legislation to prevent the construction of neiu works or 
canals on the Rio Bravo del Norte and its tributaries, on that part pass- 
ing through the territory of the United States of America, or, if they 
are constructed, to prevent the volume of water being diminished 
to such an extent that it will not supply the dam, and to institute 
prompt and efficacious legal proceedings to prevent the violation of 
the provisions of this convention. 

Article VII. 

The two Governments shall appoint a mixed commission of engi- 
neers to lay off the dividing line in accordance with the provisions 
of Article III of this convention, and the line run by that com- 
mission shall be regarded hereafter as the dividing line between the 
two countries. 

Article VIII. 

In compensation for the expenses which the Government of the 
United States of America has to undergo in the construction of the 
dam, and in cousideration of the cession of territory referred to in 
Article III of this convention, the Government of the United States 
of Mexico regards as satisfied all claims of Mexican citizens against 
the Government of the United States of America arising from the 
want of water in the Rio Bravo del Norte caused by the taking of 



32 

water in the State of Colorado and the Territory of New Mexico, and 
expects no indemnity for such damage. 

Article IX. 

The present convention shall be ratified by the two parties in ac- 
cordance with their respective constitutional procedure, and the rati- 
fications shall be exchanged at Washington as soon as possible. 

In witness whereof the undersigned plenipotentiaries have signed 
and sealed the same. 

Done in duplicate in the city of Washington, in the Spanish and 
English languages, this day of , . 



BILL TO PREVENT IRRIfiATlON IN NEW MEXICO. 



57th Congress, 1st Session. 
S. 453. H. R. 115. 

December 4, 1901. — Mr. Culberson, of Texas, introduced the fol- 
lowing bill in the Senate; which was read twice and referred to the 
Committee on Foreign Relations. 

December 2, 1901. — Mr. Stephens, of Texas, introduced the follow- 
ing bill in the House of Representatives ; which was referred to the 
Committee on Foreign Affairs, and ordered to be printed. 



A BILL 

To provide for the equitable distribution of the waters of the Rio - 
Grande River between the United States of America and the 
United States of Mexico, and for the purpose of building an inter- 
national dam and reservoir on said river at El Paso, Tex. 

Whereas the Republic of Mexico has made reclamation of the 
United States to the Secretary of State, through its legation in Wash- 
ington, for a large indemnity for water alleged to have been taken 
and used by the citizens of the United States in Colorado and New 
Mexico, on the head waters of the Rio Grande, to which citizens of 
Mexico had right by prior appropriation, in violation of the spirit 
of article seven of the treaty of peace of Guadalupe Hidalgo ; and 



33 

Whereas an investigation directed jointly by the State Depart- 
ments of the two Republics and carried out by the International 
Boundary Commission organized under the convention of March 
first, eighteen hundred and eighty-nine, discovered the fact that the 
flow of the river has graduall}' diminished for the past fifteen years 
in an increasing ratio, so that the ordinary summer's flow in the 
lower river is inadequate to sup[)ly the wants of irrigation, domestic, 
and other purposes, as has been supplied in previous years ; and 

Whereas a remedy lias been proposed by the two Governments 
for this deficiency by impounding in an international dam and 
reservoir, near the bouijdary line between the two Republics, the 
annual flood waters of the spring season, which are greatly in excess 
of the wants of irrigation, domestic, and other purposes in those 
seasons, such waters to be equitably distributed between the two 
Republics; and 

Whereas it was afterwards discovered that other like projects of 
large dams and reservoirs were contemplated above said proposed 
international dam and reservoir; and 

Whereas the two Governments jointly directed the International 
Boundary Commission hereinbefore mentioned to investigate and 
report upon the feasibility of the project; and 

Where'as said commission reported that, in their judgment, the 
project was feasible, but that the flow was insufficient for more than 
one reservoir; and 

Whereas the two Governments were unable to agree upon the 
construction of said proposed international dam and reservoir until 
some method of restraining the building and use of other dams and 
reservoirs which would destroy the usefulness of said proposed 
international dam and reservoir has been devised : Now, therefore, 

Be it enacted by the Senate and House of Representatives of tlie United 
States of America in Congress assembled, That nothing in the acts of 
March third, eighteen hundred and ninety-one, Jaiuiary twenty- 
first, eighteen hundred and ninety-five, February twenty-sixth, 
eighteen hundred and ninety-seven, and May eleventh, eighteen 
hundred and ninet^^-eight, shall be so construed as to authorize the 
appropriation and storage of the waters of the Rio Grande or its 
tributaries in the Territory of New Mexico to which others have 
right by prior appropriation ; and every person and every cor.pora- 
tion which shall be guilty of thus unlawfully appropriating and 
storing said waters in this act mentioned shall be deemed guilty of 
a misdemeanor, and on conviction thereof shall be punished by a 
fine not exceeding five thousand dollars or by imprisonment (in the 



34 

case of a natural person) not exceeding one year, or by both such 
punishments, in the discretion of the court. The unlawful appro- 
priating and storing of water in this act mentioned may be prevented, 
and the dam, reservoir, or otlier means used for impounding the 
water may be removed by the injunction of any circuit court exer- 
cising jurisdiction in any district in which said water may be appro- 
priated or stored, and proper proceedings in equity to this end may 
be instituted under the direction of the Attorney General of the 
United States. 

Sec. 2. That the Secretary of State is hereby authorized to pro- 
ceed with the consummation of the proposed treaty between the 
United States of America and the United States of Mexico, and if 
the United States of Mexico shall accept the construction of the pro- 
posed dam and reservoir, with the conditions that the flood water 
impounded by it shall be equally distributed between the two coun- 
tries as liquidation of all past and future claims for water appro- 
priated in the past or to be appropriated in the future by citizens of 
the United States otlierwise than by impounding it in large dams 
and reservoirs in New Mexico, then the Secretary of State is further 
authorized to proceed with the construction of said dam and reser- 
voir according to the plans and specifications submitted in the re- 
port of the International Boundary Commission, as published in 
Senate Document Numbered Two hundred and twenty-nine, Fifty- 
fifth Congress, second session, and the sum of two million three 
hundred and seventeen thousand one hundred and thirteen dollars 
and thirty-six cents is hereby appropriated for that purpose. 



APPENDIX. 



ABSTRACTS 

FROM THE DECISIONS 

OF THE 

SUPREME COURT OF NEW MEXICO 

IN 

THE ELEPHANT BUTTE DAM CASE, 

WITH CITATIONS FROM THE LAWS OF THE UNITED STATES CONCERNING 

THE USE OF THE WATERS OF THE ARID REGIONS 

FOR IRRIGATION PURPOSES. 



SUPRExME COURT OF NEW MEXICO, 

July Term, 1897. 
The United States {Appellant), ^ 

V. ' 

The Rio Grande Dam and Irrigation COxMpany et al. ( ^' 
(Appellees). ) 

Appeal from the Third Judicial District CoiLrt. 

" This is a suit in equity brought by the United States to restrain 
the Rio Grande Dam and Irrigation Company from constructing or 
maintaining a dam across the Rio Grande, at Elephant Butte in the 
Territory of New Mexico. . . . 

"The ground upon whicli the chiim of the Government is predi- 
cated is that the Rio Grande is a navigable river, and that the pro- 
posed dam will obstruct the navigation of the river, the flow of 
waters therein, and interfere with its navigable capacity ; and that 
such obstructions would be contrary to the treaty with Mexico, and 
in violation of the Acts of Congress. 

(35) 



36 

"A preliminar}'- injunction was granted, and the defendants or- 
dered to show cause why it sliould not be continued. The Defend- 
ants answered denying tliat tlie Rio Grande is a navigable river ; 
and also filed pleas justifying, under their right of way for canals 
and reservoirs secured under the Act of Congress of 1891 and certain 
Territorial laws. 

" Upon the hearing, the Court below held that upon the facts 
presented by affidavit, as well as other facts of which it took judicial 
notice, the Rio Grande is not a navigable stream within the Terri- 
tory of New Mexico, and that the bill does not state a case entitling 
it to the relief prayed ; and upon the Complainant's declining to 
amend its bill further, the Court dissolved the injunction and dis- 
missed the bill. From that judgment, the United States appealed 
to this Court. . . . 

" Unless the Rio Grande is a navigable stream, and its ' naviga- 
tion ' or ' navigable capacit}^ ' will be obstructed by the proposed 
dam, the statutes do not apply to the case, and cannot be invoked 
to enable the Government to stop the progress of the work by in- 
junction. 

" Tt is alleged, in the original bill, that the Rio Grande, from and 
including the site of the proposed dam, has been used to float logs 
for commercial and business purposes, and for affording a means 
for commercial traffic within and between the Territory of New 
Mexico and the State of Texas and the Republic of Mexico. In the 
amended bill, it is alleged that the said river is susceptible of nav- 
igation for commercial purposes up to La Joya in the Territory of 
New Mexico, about one hundred miles above Elephant Butte. In 
both, the river is alleged to be navigable at certain points below El 
Paso. 

" It is conceded that the navigability of waters is a matter of which 
Courts take judicial notice. The record contains a large mass of 
information in the form of maps, reports of exploring and survey- 
ing expeditions made under the direction of the War and Interior 
Departments, and also reports of officers speciall}' detailed to inves- 
tigate the feasibility of rendering the river commercially navigable 
by improvements, and also its capability of supplying reservoirs for 
irrigation. From these and other data, the following facts, as stated 
in the opinion of the Court below, are well established. . . . 

"The course of the. Rio Grande in New Mexico is through rocky 
canons and . . . valleys over fine, light soil of great depth. 
. . . onlv two instances were shown where the river was actually 



Oi 

utilized for the conve}" ance of merchandise, and these were timbers ; 
one of these instances occurred in 1858 or 1859, wlien a raft was 
sent down from Canutillo to El Paso, a distance of twelve miles ; 
and the other recentl}', when some telegraph poles were floated from 
La Joya, a ' short distance.' . . . 

' From Bernalillo (N. M.) to Fort Hancock (Texas) the Rio 
Grande is in the highest degree spasmodic, with immense 
floods during a few weeks of the year and a small stream 
during the remainder of it.' (10 Annual Report Geol. Sur. 
p. 99.) 

' From personal observation, I know that these seasons of 
flood and drought (in the Valley of the Rio Grande) were of 
about the same character 30 years ago.' (Major Anson Mills 
10 U. S. Cav., Rep. Spec. Com. Sen. A^ols. 3 and 4 p. 39.) 

" But what is of more importance, we have the reports of officials 
upon the exploration of the river made under the direction of the 
Government for the special purpose of considering its navigability. 
From these it appears that: 

' The stream is not navigable, and it cannot be made so .by 
open channel improvement. . . . Certainly there is no 
public interest which would justify the expenditure of the 
many millions of dollars which such an improvement would 
involve. The irrigation of the valley is a matter in which 
the inhabitants are most deepl}^ interested, while the possible 
navigation of the river receives little or no attention from 
them. In my judgment, the stream is not worthy of im- 
provement by the General Government.' (Report of 0. H. 
Ernst, Major of Engineers, to Secretary of War, 1889.) 

"Again : 

' I consider the construction, not only of an open river 
channel, but of any navigable channel, to be impracticable. 
During the greatest part of the year, when the river is low, 
the discharge would be insufficient to supply any navigable 
channel, except perhaps a narrow canal with locks, the con- 
struction of which, on a foundation of sand in places forty-six 
feet deep, would be financially, if not physically, impractica- 
ble.' (Report of Gerald Bagnell, Assistant Engineer to Sec- 
retary of War, 1889.) 

" The navigability of a river does not depend upon its susceptibility 
of being so improved by high engineering skill and the expenditure 



38 

of vast sums of money, but upon its natural present conditions. In 
the case of the Daniel Ball, 10 Wallace, 557, the Supreme Court sa3^s : 

'Those rivers must be re,^-arcled as public navigable rivers 
in law which are navigable in fact, and they are navigable 
in fact when they are used or are susceptible of being used, in 
the ordinary condition, as highways for commerce over which 
trade and travel are or may be conducted in the customary 
modes of trade and travel on water.' 

" In the case of the Montello, 20 Wallace, 431, the Court says: 

' If it be capable, in its natural state, of being used for pur- 
poses of commerce, no matter in what mode that commerce 
may be conducted, it is navigable in fact, and becomes a 
public highway. The vital and essential point is whether 
the natural navigation of the river is such that it affords a 
channel for useful commerce.' 

" The Court approves the language of Chief Justice Shaw in 21 
Pickermg, 344, who said : 

' In order to give it the character of a navigable stream, 
it must be generally and commonly useful to some trade or 
agriculture.' (See also Morrison v. Coleman (Ala.) 3 L. R. A., 
344.) 

" Of course it need not be perennially navigable, but the seasons of 
navigability must occur regularl}^ and be of sufficient duration and 
character to subserve a useful public purpose for commercial inter- 
course. While the capacity of a stream for floating logs or even 
thin boards may be considered, yet the essential quality is that the 
capacity should be such as to subserve a useful public purpose. 
Angell, Water Courses, 335. In a recent case, the Supreme Court of 
Oregon says, per Thayer, C. J. : 

'Whether the creek in question is navigable or not for the 
purposes for which appellant used it, depends upon its ca- 
pacit}^ in a natural state to float logs and timber, and whether 
its use for that purpose will be an advantage to the public. 
If its location is such and its length and capacity so limited 
that it will only accommodate but a few persons, it cannot be 
considered a navigable stream for any purpose. It must be 
so situated, and have such length and capacity, as will en- 
able it to accommodate the public generally as a means of 
transportation.' 



39 

"And in the same case Lord, J., said : 

' It must be susceptible of beneficial use to the public,' be ' capable 
of such floatage as is of practical utility and benefit to the public as 
a highway.' 

"And of the stream then in question he says : 

' It is not only not adapted to public use, but the public 
have made no attempt to use it for any purpose.' (Haines v. 
Hall (Oregon) 3 L. R. A., 609.) 

" The Supreme Court of Alabama says : 

'In determining the character of a stream, inquiry should 
be made as to the following points : whether it be fitted for 
valuable floatage : whether the public or only a few individ- 
uals are interested in transportation ; whether the periods of 
its capacity for floatage are suflficiently long to make it sus- 
ceptible of use, beneficially, to the public' (Roads v. Otis, 33 
Ala., 578; Peters v. N. 0., M. & G. R. Co., 56 Ala., 532.) 

" Indeed, in the letter of inquiry b}^ the Hon. Richard Olney, 
Secretary of State, in respect to the facts as to the navigability of 
the Rio Grande, he says: 

' It should be remembered that a mere capacity to float a 
log or a boat will not alone make a river navigable. The 
question is, whether the river can be used profitably for 
merchandise. I have been informed that wood is sometimes 
brought down the River to Ciudad Juarez in flat boats, and 
that logs are rafted or floated down from the timbered lands 
on the upper river for commercial purposes.' (Letter Jan- 
uary 4, 1897.) 

" The Secretary of State seems to have been misinformed as to such 
use for commerce. This letter was addressed to Col. Anson Mills, at 
whose request it appears that application for right of tvay for irrigation 
bytheuse of the waters of the Rio Grande andallits tributaries, was sus- 
pended throughout New Mexico and Colorado. The answer of Col. 
Mills deals almost wholly with the river internationally ; the river, in 
its relation to interstate commerce, is dismissed by him with the 
instance of the floating of a raft of logs in 1859 from a point 18 miles 
above El Paso, and the qualifying remark ' it would now hardly be 
practicable to do so.' (Letter January 7, 1897.) 

" It is particularly clear that the Rio Grande above El Paso has 
never been used as a navigable stream for commercial intercourse, 
in any manner whatever, and that it is not now capable of being so 



40 

used. On the other hand it has been, from the earliest times of 
which we have any knowledge, used as a source of water for irriga- 
tion. The Valley has alwaj's been the centre of population in New 
Mexico. It was the first portion of this region to be occupied and 
settled by civilized man ; and the population of this valley has 
always been, and is now, absolutely dependent for means of 
livelihood and subsistence upon the use of the waters of this 
river for irrigation of their fields and crops. Dams have been 
erected and maintained at El Paso for nearly 200 years, by 
which the river has been obstructed and its waters diverted for 
irrigation to both sides of the Rio Grande. But never until the 
present time, so far as we can ascertain, has any question been 
raised by any one as to interference with any use of tlie river for 
purposes of navigation. Indeed, it appears from the affidavits and 
reports j9rese7i^ed m support of tJt.e bill in this case, that the objec- 
tion noiv raised to the construction of the Defendant's dam grows out of 
the proposed construction of an international dam and reservoir at El 
Paso, to be constructed under the auspices of the two Governments. 
The investigation of the feasibility of such an international dam and 
reservoir is being made on behalf of the United States under the 
authority of Congress, thus evincing the deliberate intention of the Gov- 
ernment by its political department to take measures, not for 
the purpose of improving the navigability of this river, but of per- 
manently obstructing it at a point far below the site of Defendant's 
works, and thus to devote the stream to irrigation instead of naviga- 
tion. One of the affidavits in support of the bill is made by the 
Commissioner of the United States engaged upon this investigation, 
the object of which he states to be ' the study of a feasible project 
for the equitable distribution of the waters of the Rio Grande to all 
persons residing on the banks or tributaries, having equitable inter- 
ests therein.' And he also states in one of his reports that ' the 
probably flow of water in the river here (El Paso) is likely to be 
ample for the supply of the proposed International reservoir, but that 
the flow will not be sufficient to supply the proposed International 
reservoir here, and allow for the supply for the proposed reservoir 
of the Rio Grande Dam and Irrigation Company, at Elephant 
Butte, in New Mexico, or any other similar reservoirs in New Mexico, 
and but one of these schemes can be successfully carried out.' 

" That is to say, in order to render feasible the storage of water for 
irrigation at El Paso, it is essential to prohibit all similar structures 
along the river at points above. 



41 

" From these extracts, it seems clearly apparent that the work at 
El Paso to which the United States has committed itself, tentatively 
at least, is not designed to preserve or improve the navigability of 
the river, but to facilitate the distribution of the waters which may 
be gathered by obstructing the stream for the benefit of riparian 
occupants ; and that the object of this proceeding is not to secure a 
public benefit from the navigation of the Rio Grande, but rather, 
under the guise of a question of navigahility of the stream, to obtain an 
adjudication of the interests of rival irrigation schemes, in aid of one 
locality against another. Manifestly, neither the Acts of Congress 
cited, nor the provisions of the treaty, have any application to ques- 
tions of this kind; and they cannot be invoked to settle conflicting 
local interests whose determination must necessarily depend upon 
entirely different considerations. 

'' The Rio Grande, as we have said, flows through a region depend- 
ent upon irrigation. It is a part of what is known as the arid re- 
gion of this country, embracing, according to the report of the 
Director of the Geological Survey, about four-tenths of the entire 
area of the .United States in which the rainfall is not sufficient for 
the production of crops. Here, the paramount interest is not the 
navigation of the streams, but the cultivation of the soil by means 
of irrigation. Even if, by the expenditure of vast sums of money 
in straightening and deepening the channels, the uncertain and 
irregular streams of this arid region could be rendered to a 
limited extent navigable, no important public purpose would 
be subserved by it. Ample facilities for transportation, adequate to 
all the requirements of commerce, are furnished by the railroads. 
. . . But, on the other hand, the use of the waters of all these 
streams for irrigation is a matter of the highest necessity to the 
people inhabiting this region; and if such use were denied them, it 
would injuriously affect their business and prosperity to an extent 
that would bean immeasurable public calamity. These conditions 
have been distinctly recognized in the legislation of Congress. For 
while it has refrained from any attempt to render streams like the 
Rio Grande navigable by artificial works, and has not in any way 
treated them as navigable waters, Congress has, by the reservation 
or survey of reservoir sites along its valley, and the appropriation 
of large sums of money for the prosecution of investigations and 
surveys to this end, clearly indicated its purpose to treat these waters 
as suitable only for irrigation, and to consider such a use of them 
as the one of commanding importance. 



42 

" The np'arian rights of the United States were surrendered in 1866 
(R. S. 2339) ; prior to that time it had become establislied tliat the 
common-law doctrine of riparian rights was unfitted to the condi- 
tions in the far west and new rules had grown up under local legis- 
lation and customs more nearly analogous to the civil law. Recog- 
nizing that the public domain could not be utilized for agricultural 
and mining purposes without the use of water applied by artificial 
means, and that vast interests had grown up under the presumed 
license of the Federal Government to the use of such waters, Con- 
gress confirmed the rights of prior appropriations of waters by the 
Act above mentioned, where the same ' are recognized and acknowl- 
edged by the local customs, laws and decisions of the Courts.' (Sec. 
3339.) The Supreme Court of the United States, in passing upon 
this Act, observes : 

' It is evident that Congress intended, although the lan- 
guage is not happy, to recognize as valid the customary law 
with respect to the use of the water which had grown up 
among the occupants of the public lands under the peculiar 
necessities of their condition.' (Atchison v. Peterson, 20 
Wal., 507 ; Basey v. Gallagher, 20 Wal., 671 . And since 1870, 
patents for lands expressly except vested water rights.) 

" Congress has manifested a purpose to extend the largest liberty 
of use of waters in the reclamation of the arid region, under local 
regulative control. Following in line with the Act of 1866, the Act 
of 1877 authorized the entry of desert lands in the arid region by 
those who intend to reclaim them by conducing water upon them. 

" This act was limited to States and Territories in the arid region 
(1 Supp. R. S., p. 137). Colorado was included in 1891 (1 Supp. 
R. S., pp. 249-251). By the Act of 1888 (an appropriation bill) an 
investigation was directed as to the extent to which the arid region 
might be redeemed by irrigation ; it provided for the selection of 
sites for reservoirs for the storage and utilization of water for irriga- 
tion and the prevention of overflows, and that the lands designated 
for reservoirs, ditches or canals, and all lands susceptible for irriga- 
tion therefrom be reserved from sale or entry (1 Supp. R. S., p. 
698). . . . On the 26th day of February. 1897, Congress opened 
the reservoir sites, reserved by the Government under the Act of 
1891, to private location, and the local legislators were authorized to 
prescribe rules and regulations and fix water charges. (Decision 
Interior Department, Vol. 18, p. 168.) 



43 

"Considering the discussions in Congress, the reports of Commit- 
tees, and the labors and reports of officials in the Interior and War 
Departments, made under congressional directions, it seems quite 
manifest that the purpose by the Federal Government to hold and 
further redeem the great arid region, had become the recognized 
policy. . . . It would appear that at first it was the design to estab- 
lish and maintain an elaborate system of irrigation at public expense, 
but the immence cost of such an enterprise seems to have induced its 
abandonment, temporarily, at least ; and in its stead another system 
has been provided by irrigation at private cost. The system may 
be incomplete in many of its details, but such as it is, reservoir sites 
have been located, surveyed and established along the streams, 
navigable and non-navigable, under the immediate direction of 
Government officials and by authority of Congress ; and the right 
to make private entries of others under the supervision of the Secre- 
tary of the Interior is also authorized. 

" Ruins of extensive irrigation systems of a prehistoric people, 
scattered all over New Mexico and Arizona, show that conditions 
which have confronted the present age were conditions encountered 
in the remote past and apparently overcome. The cultivation of 
the Rio Grande Valley by acequias from the river is mentioned by 
the earliest Spanish priests and explorers, and is established by au- 
thentic historical memorials extending back more than two cen- 
turies. The law of prior appropriation existed under the Mexican 
Republic at the time of the acquisition of New Mexico, and one of 
the first acts of this Government was to declare that 'the laws here- 
tofore in force, concerning water courses . . . shall continue in 
force.' . . . In ] 874, it was provided that — 



' All of tlie inhabitants of the Territory of New Mexico 
shall have tlie right to construct either private or common 
acecjuias and to take water for said acequias from wherever 
they can, with the distinct understanding to pay the owner 
through whose lands said acequias have to pass, a just com- 
pensation for the land used.' (C. L., Sec. 17.) 

" In 1887, an Act was passed giving authority to corporations to 
■construct reservoirs and canals, and for this purpose to take and 
divert the water of any stream, lake, or spring, provided it does not 
interfere with prior appropriations. (Session Acts, 1887, Chap. 12.) 
Other Acts have been passed since in regard to the acquisition of 
water rights. But this legislation is not peculiar to New Mexico ; 



44 

its general characteristics are common throughout the West, where 
the doctrine of prior appropriation prevails. Thus was the char- 
acter of local legislation, which Congress recognized, confirmed and 
authorized, by the various Acts to which reference has been made. 
The doctrine of prior appropriation has been the settled law of this 
Territory by legislation, custom and judicial decision. Indeed, it 
is no figure of speech to say that the agriculture and mining life 
of the whole country depends upon the use of the waters for irriga- 
tion; and if rights can be acquired in waters not navigable, none 
can have greater antiquity and equity in their favor than those 
which have been acquired in the Rio Grande Valley in New Mexico. 
" It is contended that because the Rio Grande is capable of navi- 
gation to a limited extent, several hundred miles below the point of 
the proposed dam, its construction will, by arresting the flow of 
water in tlie stream, interfere with its navigable capacity, and that 
it is therefore prohibited by the act of 1890. From the foregoing 
discussion of the legislation of Congress, and the conditions pre- 
vailing in the region under consideration, it would seem to fol- 
low that if there were a conflict between the interests of navi- 
gation and agriculture in relation to a stream like the Rio^ 
Grande, that of the latter would prevail. Certainly it should 
be held to be under the protection of the courts against any doubt- 
ful interpretation or application of a penal statute. If the waters 
of the Rio Grande are not navigable in New Mexico, which 
we hold to be the case, then the}^ cannot be said to be waters in 
respect of which the United States has jurisdiction. And certainl}^ 
in the absence of some express declaration to that eff'ect, it cannot 
be supposed that Congress intended to strike down and destroy the 
most important resources of this vast region in order to promote 
the insignificant and questionable benefit of the navigation of 
the Rio Grande for a short distance above its mouth. For the 
construction contended for does not limit the prohibition of the 
Act of Congress to the works proposed by the defendants. It ap- 
plies to the maintenance as well as the original creation of obstruc- 
tions. If Defendants' dam at a point where the river is not navigable 
is an obstruction to the navigable capacity of the river several hun- 
dred miles below, the same must he said of every dam and irriga- 
tion ditch which diverts water from the river or any of its confluents 
at their primary sources. If upon this ground it is competent for 
the United States to prohibit the erection of Defendants' Dam, it is 
equally competent for it to compel the removal of every dam and 



45 

head gate heretofore constructed on the Rio Grande and its tribu- 
taries, and prohibit the use of their waters for irrigation throughout 
this entire valley. . . . 

" In view of the condition and history of the region which would 
be affected ; the unimportance of the Rio Grande as a waterway for 
commercial intercourse at any jDoint ; its non-navigabilit}^ at the 
place of the proposed construction, and for hundreds of miles below ; 
and the evident purpose of Congress by its legislation to promote 
irrigation throughout this portion of the country, even to the ex- 
tent of further obstructions of this very stream, it would in our 
opinion be unreasonable to hold that legislation, which has a 
definite and well-understood purpose in furtherance of the public 
interest in these portions of the country to whose conditions it is 
applicable, was intended to operate to the detriment of the public 
interests, in regions to whose conditions it is not applicable and 
where its enforcement would be destructive of the ver}'- interests 
wliich the legislation of Congress has otherwise undertaken to pro- 
mote. 

" We therefore hold that the work sought to be enjoined in this 
action is not in violation of any law of the United States, or any 
treaty, and that the judgment of the District Court dissolving tiie 
injunction and dismissing the bill should be affirmed, and it is so 
ordered." 

(Signed) Thomas Smith, 

Chief Justice. 
" 1 concur in the conclusion reached : " 

(Signed) N. B. Hamilton, A. J. 

N. B. Laughon, a. J. 



LAWS OF THE UNITED STATES RELATING TO THE USE 
OF WATER FOR IRRIGATION. 

Prior to 1866, various States and Territories west of the Mississippi 
had enacted laws regulating the use of waters in the streams and 
lakes for mining and agricultural purposes. All these laws were 
based on the theory that the first appropriator was entitled to the 
water, or so much as was necessary for his purposes. The following 
statutes of the United States directly affirm this State and Territorial 
legislation, and encourage the use of the waters for such purposes, 
and especially for the purpose of irrigation : 



46 

Sec. 2339. " Whenever, by priority of possession, rights to 
the use of water for mining, agricultural, manufacturing, or 
other purposes, have vested and accrued, and the same are 
recognized and acknowledged by the local customs, laws, and 
the decisions of courts, the possessors and owners of such 
vested rights shall be maintained and protected in the same; 
and the right of way for the construction of ditches and 
canals for the purpose herein specified is acknowledged and 
confirmed ; but whenever any person, in the construction of 
any ditch or canal, injures or damages the possession of any 
settler on the public domain, the party committing such in- 
jury or damage shall be liable to the party injured for such 
injury or damage." {Rev. *S1, 4-29.) 

Sec. "234-0. "All patents granted, or pre-emption or home- 
steads allowed, shall be subject to any vested and accrued 
water rights, or rights to ditches and reservoirs used in con- 
nection with such water rights, as may have been acquired 
under or recognized by the preceding section." 

19f/i Statute, 377 (Sup. 2d Ed., 137, 1887). "An act to provide for 
the sale of desert lands," &c., which, after providing in the first sec- 
tion a method by which said lands might be filed upon, and water 
conducted upon the same for irrigation purposes, there follows this 
proviso : — 

" Provided, however, that the right to the use of water by 
the person so conducting the same, on or to any tract of desert 
land of six hundred and forty acres shall depend upon bonci 
fide prior appropriation : and such right shall not exceed the 
amount of water actually appropriated, and necessarily used 
for the purpose of irrigation and reclamation : and all surplus 
water over and above such actual appropriation and use, to- 
gether with the water of all lakes, rivers, and other sources of 
water supply upon the public lands and not navigable, shall 
remain and be held free for the appropriation and use of the 
public for irrigatiou, mining and manufacturing purjjoses 
subject to existing rights." 

This Statute was specifically made applicable to California, Oregon, 
Washington, Idaho, Montana, Utah, Wyoming, Arizona, New Mexico, 
and Dakota. Afterwards, in 1891, it was made applicable to Colo- 
rado. (Sup. 2d Ed., 941.) 

2Sth Statute, 526. Congress in the Sundry Civil Bill provided for 
the survey of reservoirs and canal sites, and for reserving from sale 
all such sites, and all lands that would be watered by such reser- 
voirs, and appropriated $100,000 therefor. Also see Sup. 2d Ed., 
626. 



47 

2ot]i. Statute, 960. Congress again provided in the Sundry Civil 
Bill for investigating the extent to which the arid region of the 
U. S. can be redeemed by irrigation, and the segregation of irriga- 
ble lands in such arid region, and for the selection of sites for reser- 
voirs and other hydraulic works necessary for the storage and 
utilization of water for irrigation, and made an appropriation of 
$250,000 to pa}^ the expenses. 

26tli Statute, 391. Here Congress again, in the Sundry Civil Bill, 
legislated with reference to the question of irrigation, and repealed 
the act providing for the witlidrawal from entry of lands in the 
vicinity of reservoir sites, except that the reservoir sites themselves, 
theretofore located or selected, should remain segregated and re- 
served from entry or settlement, as provided b}^ law, and reservoir 
sites thereafter located or selected on public lands should in like 
manner be reserved from the date of location or selection thereof. 

26th Statute, 1101. Congress restricted the reserves about reservoir 
sites to the land necessary for the reservoirs. 

'28th Statute, 4-22-3. Appropriates desert lands to the various 
States and Territories on certain conditions of reclaiming the same 
by irrigation, the aggregate amount not exceeding 1,000,000 acres, 
being Section 4- of the Sundry Civil Bill of August 18, 1894. 

28th Statute, 635-6. This is an act authorizing the use of public 
lands for reservoirs and canals, giving 50 feet on either side of the 
same. 

29th Statute, 4-84- An act providing for reservoirs on the public 
lands by persons or corporations engaged in breeding live stock, &c. ; 
reservoirs not to exceed 160 acres. 

29th Statute, 599. All reserved reservoir sites are by this act thrown 
open to appropriation by individuals, corporations, and States, under 
the act of March 3, 1891, limited by the following proviso . 

" Provided, that the charge of water coming in whole or 
part from reservoir sites used or occupied under the provis- 
ions of this act shall always be subject to the control and 
regulations of the respective States and Territories in which 
such reservoirs are in whole or in part situate." 



